George Bush, Dred Scott & Abortion

[NOTE: I've decided to cross-post this from my other blog, because I think it is an important issue even though it is flying under the radar in the press.]

Okay. Just this one last post to clearly put down why I think Bush referred to the Dred Scott v. Sanford (1857) case last night when discussing "litmus tests" and judicial appointments. I think there needs to be a lot more discussion of this around the country. Last night I wrote:

Bush will probably spend the next few days having to live down his utterly bizarre commentary on judicial appointments. He was obviously prepped to deliver the reply, but it made no sense whatsoever--at least on the surface. Saying he wouldn't appoint judges who supported the Dred Scott v. Stanford reasoning was one of the weirdest things I've ever heard. It was so strange. Of course Bush wasn't answering spontaneously; that's not what he does, after all. So what was the motivation of having this mid-1800s, pre-Civil War case cited as Bush's litmus test for judicial appointment? The Dred Scott case was an 1857 Supreme Court opinion that legitimized the ownership of slaves, denied that freed slaves enjoyed the "privileges and immunities" of citizenship, and argued slave owners' Fifth Amendment due process rights were violated by individual states' outlaw of slavery. Why does this case play a role in George Bush's Supreme Court litmus test?

I thought about it a bit, and decided that it was probably a ham-handed code for pro-lifers' benefit. This should definitely be decoded though, which probably requires some more research into pro-life circles, but I wonder if this citation was meant to refer in code to the status of the unborn versus the rights of the mother. Giving the unborn autonomous rights and protections, and denying that carrying mothers have rights--protected by the due process clauses in the Constitution--over the children they carry would seem to have some tangential relationship to the President's bold rejection of the idea that humans can be considered property. Why was Bush obviously prepared with this answer? Since the Thirteenth and Fourteenth Amendments settled this debate in the 1860s, for crying out loud, what is the point of bringing this up? Why else would George Bush be bravely taking a stand in favor of the abolition of slavery? It's my guess that Bush is sending an implicit, unspoken signal about what his judicial litmus test really is, and that any Supreme Court nominee from a second Bush Administration would thus have to categorically reject Roe v. Wade, and the rights of women to determine their reproductive rights. Of course he won't come out and say it, though. Charming, eh?

I initially added these parts as "Updates" to that post, but they just made it too darn long, and I think this issue deserves its own post:

UPDATE 1: Here is the passage, so pregnant with various meanings and assumptions, from the debate transcript:

BUSH: ... Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution. [My emph. - Stygius]

Of course, that's exactly what all judicial litmus tests actually are, Mr. President: a measuring of judges for how they would interpret the Constitution. So Bush is really saying: No litmus tests except for my preferred litmus test, God help you. And now we know what that litmust test is: The categorical overturning of Roe v. Wade.

UPDATE 2: (*Sigh* I just can't let it go.) This site makes the association as clear as it can. This NRLC page does some selective textual comparison. Read this interesting speech by former Pennsylvania Gov. Robert P. Casey. He is the Casey of Planned Parenthood of Southeastern Pennsylvania v. Casey fame. This passage uses Lincoln to outline Casey's view of the relationship between judicial authority and legal obligation of the people:

In his first Inaugural Address, Abraham Lincoln, in referring to the Dred Scott case, expressed the view that the other officers of the government could not be obligated to accept any new laws created by the Court unless they, too, were persuaded by the force of the Court's reasoning. Any other position would mean, in his view, that "the policies of the government upon vital questions, affecting the whole people [could] be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between two parties, in personal actions." If that were to occur, said Lincoln, "the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal."

After much thought and reflection since 1987, I must confess that I am more and more persuaded that Lincoln's view should be the standard for pro-life elected officials in 1993 and beyond.

But I think this next quote goes to the heart of the matter (and I wouldn't be surprised if this speech was the catalyst behind Bush's preparation last night):

One-hundred and thirty-six years ago, a human being was declared a piece of property, literally led off in chains as people of good conscience sat paralyzed by the ruling of the court. [The Dred Scott decision]

The other time was January 22, 1973. An entire class of human beings was excluded from the protection of the state, their fate declared a "private" matter.

So I think we've decoded George Bush's Dred Scott reference pretty effectively. So why can't the President come out and say what he really thinks about judicial litmus tests?

UPDATE 3: This Charlotte Observer article begins to explore some of the tension and paradox in the "strict constructionist's" position, using Justice Antonin Scalia's dissent in Lawrence v. Texas and Taney's Dred Scott opinions as touchstones. My quick perusal of the Dred Scott opinion says that actually a strict constructionist, if genuinely strict, would have to agree with the opinion as written (which pre-dated the 13th, 14th, and 15th Amendments). And Scalia is of the strict constructionist school of thought. However, Scalia himself views Taney's writing as ignoring the authority of the people to resolve slavery legislatively, and criticizes the current Supreme Court for the same approach. I think this points to some irreconcilable issues in Scalia's judicalism, since strict Constitutional construction and a quasi-legislative sovereignty are often conflicting positions.

(To explore further the pro-life community's usage of the Dred Scott case, this Google Search will help you.)